John Barclay owns land adjoining an unused railroad right of way. The railroad has removed its tracks. Barclay seeks title by reversion to the adjacent land previously used by the railroad.

By 1990, the nation’s railway system had shrunk from its peak of 272,00 miles of track in 1920 to about 141,000 miles, and railroads continue abandoning track each year. In response, Congress enacted the National Trail Systems Act, which allows the Surface Transportation Board (STB) to issue Notices of Interim Trail Use or Abandonment (NITU) while a railroad negotiates with a potential recreational trail operator for an abandoned railroad line.

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Barclay filed this lawsuit under the Trails Act for taking land that he claims should revert to him after it was abandoned by the railroad.

But the federal government replied the STB issued a Notice of Interim Trail Use (NITU) in 1995; Barclay’s lawsuit was filed in 2004, well beyond the six-year statute of limitations for challenging continued use of the abandoned track area for recreational trails.

Adjacent landowner Barclay responded that the action under the NITU was not final until a trail-use agreement was executed with a trail-use operator so his lawsuit is within the six-year statute of limitations.

If you were the judge would you rule landowner Barclay’s lawsuit was filed too late?

The judge said yes!

Federal law dictates when railroad line abandonment occurs, the judge began. When the STB issues an NITU to allow the railroad to negotiate with a recreational trail operator, that prevents abandonment of the railroad track while the NITU is in effect, he continued.

The barrier to possible reversion of land to adjoining owners is the NITU, the judge explained. However, when the STB issued the NITU, that triggered Barclay’s cause of action for his alleged federal takings claim, he emphasized.

Because Barclay failed to bring his lawsuit within the six-year statute-of-limitations period after the NITU was issued, his lawsuit for alleged taking of his right to the abandoned railroad track area is dismissed, the judge ruled.

Based on the 2006 U.S. Court of Appeals decision in Barclay v. U.S., 443 Fed.3d 1368.

(For more information on Bob Bruss publications, visit his
Real Estate Center

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